Frankel v. Board of Land and Natural Resources. Opinion by Hiraoka, J. Concurring in Part and Dissenting in Part.

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JAN-2025
08:15 AM
Dkt. 153 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

---o0o---

DAVID KIMO FRANKEL, Plaintiff-Appellant, v.
BOARD OF LAND AND NATURAL RESOURCES, DEPARTMENT OF LAND AND
NATURAL RESOURCES AND RESORTTRUST HAWAII LLC,
Defendants-Appellees.

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC181001959)

JANUARY 29, 2025

NAKASONE AND MCCULLEN, JJ., WITH HIRAOKA, PRESIDING JUDGE,
CONCURRING IN PART AND DISSENTING IN PART

OPINION OF THE COURT BY MCCULLEN, J.

Simply put, this case is about whether the State of

Hawai‘i fulfilled its trust duty regarding the ceded land at

issue here, "Lot 41."

To have a deeper understanding of the State's duty as

to Lot 41, some historical context is necessary. Historically,
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"[l]and and natural resources were not privately owned. Rather,

the Hawaiian people maintained a communal stewardship over the

land, ocean, and all of the natural resources of the islands."

Melody Kapilialoha MacKenzie, Historical Background, in Native

Hawaiian Law: A Treatise 6-7 (Melody Kapilialoha MacKenzie et

al. eds. 2015); see Ching v. Case, 145 Hawai‘i 148, 177 n.49, 449

P.3d 1146, 1175 n.49 (2019) ("To native Hawaiians, land is not a

commodity; . . . [it] is part of their ‘ohana, and they care for

it as they do for other members of their families." (citations

omitted)).

Western contact changed that. Following the overthrow

of the Hawaiian Kingdom in 1893 and annexation by the United

States in 1898, the crown and government lands of Hawai‘i were

ceded to (or taken by) 1 the United States. MacKenzie, supra, at

24, 27; Ching, 145 Hawai‘i at 176–77, 449 P.3d at 1174–75

(chronicling the transfer of ceded lands during Hawaii's

kingdom, republic, territorial, and statehood eras). In 1959,

those crown and government lands were returned to Hawai‘i, and as

explained more fully below, are held in trust by the State.

1 Of course, as with history in general, it depends on whose historical
narrative prevailed. See State v. Wilson, 154 Hawai‘i 8, 21, 543 P.3d 440,
453 (2024) ("History is messy. It's not straightforward or fair. It's not
made by most.").

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MacKenzie, supra, at 32; Ching, 145 Hawai‘i at 176-77, 449 P.3d

at 1174-75.

We hold that the State, through Defendant-Appellee the

Board of Land and Natural Resources (or BLNR), did not fulfill

its duty regarding Lot 41, which is part of the returned crown

and government lands (or ceded lands) the State holds in trust.

I. BACKGROUND

A. Factual Background

In 1963, four years after the crown and government

lands were returned, the State entered into an agreement with

the Kahala Hilton Hotel, Charles J. Pietsch, Jr., and David T.

Pietsch (collectively, Kahala Hotel) 2 to allow Kahala Hotel to

"dredge a swimming area and construct a beach . . . for and on

behalf of the State." The agreement provided that "[t]itle to

and ownership of all filled and reclaimed lands and improvements

seaward of the makai boundaries . . . shall remain in and vest

in the State of [Hawai‘i] and shall be used as a public beach."

(Emphasis added.)

This newly constructed beach and swimming area

(Lot 41) is part of the returned crown and government lands.

2 The Waialae Country Club and the Bishop Estate Trustees were also
parties to the agreement, but they appear to be nominal parties based on the
filings below and on appeal.

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In 1968, shortly after completion of Lot 41, the Board

granted a temporary month-to-month permit for one year to Kahala

Hotel allowing it "to enter and occupy" 6,250 square feet of

Lot 41 for "[r]ecreational purposes." The Board granted these

temporary month-to-month yearly permits for the next 50 years. 3

B. Procedural Background

1. Board Proceedings

In June 2018, Sierra Club of Hawai‘i sent a letter to

the Board raising several issues related to Kahala Hotel's use

of Lot 41. Among the issues Sierra Club asked the Board to

consider was the State's public trust duty.

In July 2018, Hawaii's Thousand Friends sent a letter

to the Board also raising the public trust issue:

3 Hawaiʻi Revised Statutes (HRS) § 171-55 (2011) allows the Board to
grant temporary occupancy of State lands on a month-to-month basis not to
exceed one year, but may allow a permit to continue for additional one-year
periods:

Notwithstanding any other law to the contrary, the board of
land and natural resources may issue permits for the
temporary occupancy of state lands or an interest therein
on a month-to-month basis by direct negotiation without
public auction, under conditions and rent which will serve
the best interests of the State, subject, however, to those
restrictions as may from time to time be expressly imposed
by the board. A permit on a month-to-month basis may
continue for a period not to exceed one year from the date
of its issuance; provided that the board may allow the
permit to continue on a month-to-month basis for additional
one[-]year periods.

Whether renewing Kahala Hotel's permit for 50 years as a "temporary
occupancy" is proper under this statute is not an issue before us.

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In this era of climate change and rising seas the
Department and Board's obligation under the Public Trust
Doctrine and State Constitution (Article XI, Section 1) to
". . . conserve and protect Hawai‘i's natural beauty and all
resources, including land, water . . ." because "All public
natural resources are held in trust by the State for the
benefit of the people" is even more critical.

(Emphasis added.)

In August 2018, the new owner of Kahala Hotel,

Defendant-Appellee Resorttrust Hawaii (or RTH), requested to

amend its permit for Lot 41, which granted it use of 40,460

square feet. The request recounted some of the history of the

Kahala Hotel's use of Lot 41, noting that the Board granted

Kahala Hotel use of the entire parcel in 1986; the parcel served

as a "buffer zone" between the sandy beach and hotel; and the

parcel was used for "hukilaus," parties, weddings and other

"important events," with public access along the side of the

parking structure and by the shoreline. The request explained

Resorttrust's attempt to take "corrective action" and

"substantially reduce" its use of Lot 41.

Resorttrust identified five categories of

encroachment: (1) storage of recreational items; (2) restaurant

seating; (3) outdoor seating; (4) shower and recreational

facilities, and (5) roof overhang. Resorttrust did not identify

or discuss possible alternatives to using ceded land for these

encroachments in its request.

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(a) September 2018 Board Meeting

On September 14, 2018, the Board held a meeting to

consider Resorttrust's request. Department of Land and Natural

Resources (DLNR) staff submitted an eight-page report with

recommendations and numerous attachments regarding Resorttrust's

request to the Board. This submittal indicated the land subject

to Resorttrust's request was zoned as urban, and described the

"trust land status" as "Section 5(b) lands of the Hawaii

Admission Act." 4

4 Section 5(b) of the Admission Act was the vehicle through which the
federal government returned crown and government lands to the newly formed
State of Hawai‘i, and section 5(f) required those lands to be held in trust:

(b) Except as provided in subsection (c) and (d) of
this section, the United States grants to the State of
Hawaii, effective upon its admission into the Union, the
United States' title to all the public lands and other
public property, and to all lands defined as "available
lands" by section 203 of the Hawaiian Homes Commission Act,
1920, as amended, within the boundaries of the State of
Hawaii, title to which is held by the United States
immediately prior to its admission into the Union. The
grant hereby made shall be in lieu of any and all grants
provided for new States by provisions of law other than
this Act, and such grants shall not extend to the State of
Hawaii.

. . . .

(f) The lands granted to the State of Hawaii by
subsection (b) of this section . . . together with the
proceeds from the sale or other disposition of any such
lands and the income therefrom, shall be held by said State
as a public trust for the support of the public schools and
other public educational institutions, for the betterment
of the conditions of native Hawaiians, as defined in the
Hawaiian Homes Commission Act, 1920, as amended, for the
development of farm and home ownership on as widespread a
basis as possible for the making of public improvements,
and for the provision of lands for public use. Such lands,

(continued . . .)

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As justification for the permit, the staff submittal

provided that (1) a permit was needed to regulate Kahala Hotel's

activities, (2) the Property was unsuitable for public auction

lease, and (3) Resorttrust withdrew its draft environmental

assessment due to community concerns:

JUSTIFICATION FOR REVOCABLE PERMIT:

A land disposition is needed to regulate the hotel's
improvements and activities at the subject location, and a
revocable permit is able to meet this objective as
supported by the following justifications.

A. Site issues make property unsuitable for public auction
lease:
• No legal vehicular access.
• Irregular shape.
• The requested location and other portions of State
unencumbered lands in the vicinity are not legally
subdivided lots.

B. Since RTH became the owner of the hotel around 2014, its
representative approached the Land Division discussing
the possibility of obtaining an easement for some of the
hotel's activities and improvements. RTH published a
draft environmental assessment ("DEA") pursuant to
Chapter 343, [Hawai‘i Revised Statutes (HRS)] in the
summer of 2017, but decided to withdraw the DEA in
August 2017 due to community concerns and maintain the
current revocable permit.

(Formatting altered.)

The staff submittal reiterated some of the community's

concerns and noted the June 2018 letter from Sierra Club was

(. . . continued)

proceeds, and income shall be managed and disposed of for
one or more of the foregoing purposes in such manner as the
constitution and laws of said State may provide, and their
use for any other object shall constitute a breach of trust
for which suit may be brought by the United States. . . .

The Admission Act, 1959, Pub. L. No. 86-3, § 5(b), 73 Stat. 4, reprinted in
1 HRS at 136–37 (2009) (emphasis added).

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attached, but did not mention that Sierra Club raised a public

trust issue. The staff submittal detailed the list of items

Resorttrust requested to place on Lot 41, including a storage

area, cabana hale, cabana tents, shower, outdoor restaurant

seating area, hammock, trash cans, beach chair storage, beach

chairs, and outrigger canoe storage.

The staff submittal clarified why individuals may have

trouble distinguishing between hotel property and State land:

[T]here is a continuous stretch of landscaped area along
the Kahala Beach from Diamond Head side to Koko Head
direction maintained by RTH. As a result, depending on the
exact location, it may be difficult to distinguish whether
an individual is physically standing on the hotel property
or the State land [revocable permit] area.

(Internal brackets omitted.)

The staff submittal also explained that Resorttrust

installed public access signs, attended neighborhood board

meetings to share information, maintained Kahala Beach as part

of its operations, and agreed to continue maintaining Kahala

Beach.

In their recommendation to the Board, the staff

considered HRS Chapter 343 5 and Hawai‘i Administrative Rules

5 The Hawai‘i Environmental Policy Act (HEPA), as codified in HRS
Chapter 343 and implemented by HAR Chapters 11-200.1 and -201, establishes an
environmental review process that assesses the environmental, social,
cultural, and economic impacts of proposed projects or programs prior to
their implementation. HEPA also aims to increase public participation
throughout the environmental review process. HRS § 343-1 (2010).

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(HAR) Chapter 11-200 6 and determined the project would "probably

have minimal or no significant effect on the environment[.]"

The staff thus concluded the project was exempt from preparing

an environmental assessment and recommended issuing the permit

for "recreational and maintenance purposes" with certain

conditions.

Plaintiff-Appellant David Kimo Frankel submitted

eleven pages of written testimony regarding the permit request.

Frankel raised the State's public trust duties regarding Lot 41,

among other issues. He also requested a contested case hearing.

The Board deferred its decision on the revocable

permit pending receipt of Frankel's contested case petition.

(b) November 2018 Board Meeting

The Board met again on November 9, 2018. DLNR staff

submitted a two-page report with recommendations and numerous

attachments for the meeting. In the report, DLNR staff

recommended denying Frankel's request for a contested case

hearing. The staff then reiterated their September 2018

recommendations.

The Board approved the revocable permit as DLNR staff

recommended with additional conditions, including:

(1) Resorttrust "will obtain the necessary permits or approvals

6 On December 18, 2018, HAR § 11-200 was repealed and HAR § 11-200.1
was adopted.

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for the uses allowed under this new permit"; (2) "[p]ublic

access shall be allowed in the permit area, to the extent the

area is not in use as allowed by the Revocable Permit";

(3) "[t]here shall be two (2) twenty feet wide clear pathways

for public access/walkway"; (4) restaurant overflow seating

should not exceed fourteen days annually; and (5) "[n]o

weddings, surf lessons or kayaking/boating activities" are

allowed in the permitted area.

Two days prior to the hearing, Frankel submitted

written testimony explaining he could not attend in person. 7 In

his written testimony, Frankel again raised concerns about the

Board's "compliance with its public trust duties[.]" 8

(c) Permit Issued

The ten-page permit was executed on January 29, 2019,

but retroactive to January 1, 2019. The permit was for

"[r]ecreational and maintenance purposes limited to storage

area, cabana hale, cabana tent, beach shower, tower caddy,

hammock, trash can, beach chair storage, clam shell lounger,

beach chair set up, and outrigger canoes storage." The permit

established monthly rent at $1,320.05, which could increase to

7 Agenda Item D-17: Annual Renewal of Revocable Permits on the Island
of Oahu, Meeting Before the Board of Land and Natural Resources (Nov. 2018),
at 37–38 (written testimony of David Kimo Frankel),
https://dlnr.hawaii.gov/wp-content/uploads/2018/11/D-17T-18T-19T.pdf
[https://perma.cc/G7KB-PB8Z].

8 Id.

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$6,300.00 or 3% of gross monthly revenues, whichever was

greater, as well as other financial details.

The permit stated "beach chairs, umbrellas, shade

devices, mats, towels, and personal recreational equipment are

permitted on the Premises as long as the user is physically

present or such items have been placed on the Premises at the

request of the user." (Emphasis added.) It further instructed,

"[e]xcept as otherwise provided herein, the Permittee shall not

engage in any presetting of any equipment on the Premises."

(Emphasis added.)

The permit required Resorttrust establish and maintain

two twenty-foot-wide pathways for public access. It further

mandated public access "to the extent the area is not occupied

for a use allowed under the Permit." The permit prohibited

"weddings, surf lessons, or kayaking/boating activities" on

Lot 41.

2. Circuit Court Proceedings

(a) Frankel's Complaint

Frankel filed a four-count complaint in the Circuit

Court of the First Circuit in December 2018. Under Count 4

(Breach of Trust Duties), the only count relevant to this

appeal, Frankel asserted procedural and substantive allegations:

96. BLNR must fulfill public trust duties when it manages
and renders decisions regarding ceded land.

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97. Any balancing between public and private purposes
must begin with a presumption in favor of public use,
access and enjoyment.

98. BLNR may compromise public rights in resources
pursuant only to a decision made with a level of
openness, diligence, and foresight commensurate with
the high priority these rights command under the laws
of our state.

99. BLNR has a trust duty to respond to a permittee's
violations of the law and noncompliance with a permit
on public trust ceded land.

100. HRS § 171-7 mandates that BLNR shall prevent illegal
activities on public land and enforce permits of
public land.

101. HRS § 171-6(14) and (15) authorizes BLNR to set,
charge and collect additional rentals and fines for
the unauthorized use of public lands by a permittee
who violates any term of a permit.

102. In its decisionmaking on RTH's revocable permit for
[Lot 41] BLNR failed to begin with a presumption in
favor of public use, access and enjoyment.

103. In its decisionmaking on RTH's revocable permit for
[Lot 41], BLNR failed to render any findings or
provide any explanation as to why public recreational
uses should be sacrificed for a restaurant, storage,
and other commercial purposes.

104. In its decisionmaking on RTH's revocable permit for
[Lot 41], BLNR failed to make any findings or provide
any explanation that justifies excluding members of
the public from portions of the public trust beach.

105. In its decisionmaking on RTH's revocable permit for
[Lot 41], BLNR failed to exercise diligence.

106. In its decisionmaking on RTH's revocable permit for
[Lot 41], BLNR did not rely on an appraisal, or any
methodology to establish the rental amount.

107. In its decisionmaking on RTH's revocable permit for
[Lot 41], BLNR failed to gather reliable information,
or use any criteria, to determine an appropriate
rental amount.

108. In its decisionmaking on RTH's revocable permit for
[Lot 41], BLNR ignored RTH's violations of the law
and its permit conditions.

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109. In its decisionmaking on RTH's revocable permit for
[Lot 41], BLNR failed to exercise the authority
vested in it by HRS §§ 171-7 and 171-6(14) and (15).

110. In its decisionmaking on RTH's revocable permit for
[Lot 41], BLNR breached its trust duties.

111. BLNR's failure to fulfill their trust obligations
harms Frankel's recreational, aesthetic,
environmental and beneficial interests.

(Formatting altered.)

In his prayer for relief, Frankel requested, among

other things, that the circuit court (1) invalidate the Board's

November 2018 approval of the permit, (2) declare any permit

issued pursuant to the November 2018 approval void ab initio,

(3) enjoin DLNR and the Board from granting any permit for

commercial use of Lot 41 "unless it fully complies with . . .

its public trust duties," and (4) order the Board to adopt rules

governing its decision making regarding revocable permits.

(b) Board's and Restorttrust's Motions for Summary
Judgment

The Board moved for summary judgment on all counts,

stating it was entitled to judgment as a matter of law.

As to Count 4, the Board argued the public trust

doctrine did not apply to Lot 41 because the Hawai‘i Supreme

Court "specifically declined to rule that other types of public

land - such as the urban land at issue here - are covered" under

the public trust doctrine. The Board stated the circuit court

"should rule on this case based on the present state of the

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public trust doctrine which does not include state owned land in

the urban district."

In the alternative, the Board argued it was still

entitled to summary judgment because its "decision easily meets

any reasonable standard for applying the public trust doctrine

even if applicable here." The Board asserted it "could have -

but did not - allow commercial use of Lot 41" and "could have -

but did not - lease Lot 41 or otherwise afford exclusive rights

to a private party." To support these assertions, the Board

relied on the concept that a "central feature of the public

trust doctrine is that the State has a duty both to protect

natural resources and to promote their use and development."

Numerous exhibits were attached to the Board's motion.

Resorttrust also moved for summary judgment and joined

the Board's motion.

(c) Frankel's Motion for Partial Summary Judgment

Frankel moved for summary judgment on Count 4, relying

in part on article XII, section 4 (Ceded Lands Trust) and

article XI, section 1 (Natural Resources Trust) of the Hawai‘i

Constitution and "the ancient public trust doctrine[.]"

Frankel argued the Board breached its duties by

failing to:

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(1) "take any enforcement action" regarding the commercial
use of Lot 41 when the permit was granted for
"recreational and maintenance purposes";

(2) "provide clarity in granting a new revocable
permit[,]" relying on the explanation in In re
Waiāhole Ditch Combined Contested Case Hearing
(Waiāhole I), 94 Hawai‘i 97, 9 P.3d 409 (2000) that
"[c]larity in the agency's decision is all the more
essential 'in a case such as this where the agency
performs as a public trustee and is duty bound to
demonstrate it has properly exercised the discretion
vested in it by the constitution and the statute'";

(3) "act consistently with trust purposes" because
"[t]here is no evidence that the BLNR Defendants began
their decisionmaking with a presumption in favor of
public use access and enjoyment" relying on
Waiāhole I's explanation that any balancing begins
with the presumption in favor of public use; and

(4) "consider alternatives," such as asking RTH to place
the items on its own property.

(Formatting altered.) See Waiāhole I, 94 Hawai‘i at 142, 158, 9

P.3d at 454, 470.

Frankel further argued that, "[a]t a minimum, the

[Board] should have prepared written findings to justify

excluding members of the public from public trust ceded land

dedicated to be used as a public beach. . . . They failed to do

so." Frankel attached numerous exhibits to his motion.

The Board's Opposition. In its opposition to

Frankel's motion for partial summary judgment, and similar to

its motion for summary judgment, the Board argued Waiāhole I

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"did not extend the scope of the trust doctrine beyond submerged

land and water" and the Hawai‘i Supreme Court "specifically

declined to rule that other types of public land - such as the

urban land at issue here - are covered."

Resorttrust's Opposition. Resorttrust also filed an

opposition to Frankel's motion for partial summary judgment,

arguing Frankel's claim failed as a matter of law because he

"cannot demonstrate the State's public trust obligations apply

to" Lot 41. (Formatting altered.) Resorttrust argued the

public trust doctrine did not apply because Lot 41 is not a

water resource or conservation land.

Resorttrust then argued that even if the public trust

doctrine applied to Lot 41, the "evidence in the record,

including [Frankel's] declarations, demonstrate that the

public's interest and use in the remaining 52,520.3 [square

feet] of the total 55,756.8 [square feet revocable permit]

Premises is not substantially impaired." Resorttrust further

argued "the conditions of the most recent [revocable permit]

evidence [the Board's] careful consideration of public interests

in the State Parcel and beach, and include measures to further

protect those interests."

Finally, Resorttrust argued the Board properly

considered alternatives and claimed Frankel "ignore[d] the

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nearly five hours of testimony and questioning by [the Board] at

the September 14, 2018 meeting, which was followed by over two

hours of listening, questioning, and deliberating at the

November 9, 2018 [Board] meeting."

Resorttrust attached numerous exhibits. One exhibit

was the Revocable Permits Task Force Report dated June 24, 2016.

This task force was convened "to revisit and evaluate the

existing protocols and criteria for selecting a revocable permit

or a lease for a disposition of use of State lands and to make

recommendations for improvement." Among its goals was to

"satisfy the fiduciary responsibility to the State of Hawai‘i[,]"

as the DLNR "has a responsibility to implement the public trust

in managing State lands and as such, it is [DLNR's] duty to

award and steward these lands accordingly." The task force's

"priority was to be mindful of our obligations to the Public

Trust and stewardship overseeing these public lands."

The task force submitted a "REVISED BOARD SUBMITTAL

TEMPLATE" (Revised Template) to "[s]tandardize the Division['s]

submittal template to the Board to include a checklist for

revocable permits and supporting details for their review[.]"

The Revised Template referenced HRS §§ 171-13 and -15, section 5

lands of the Hawai‘i Admission Act, HRS Chapter 343, and HAR

§ 11-200-8. Nowhere does the Revised Template reference

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article XI, section 1 (Natural Resources Trust) and article XII,

section 4 (Ceded Lands Trust) of the Hawai‘i Constitution or the

public trust.

(d) Circuit Court's Decisions

The circuit court denied Frankel's motion for parital

summary judgment reasoning that the public trust doctrine did

not apply to Lot 41 and even if it did, whether an agency

violated the public trust doctrine was fact-based:

IT IS HEREBY ORDERED that Plaintiff's Motion for
Partial Summary Judgment as to Count 4, filed April 17,
2019, is DENIED on the following grounds:

(1) The public trust doctrine does not apply to
[Lot 41], which is designated urban district land. The
Supreme Court of the State of Hawai‘i has only applied the
public trust doctrine to conservation district lands and
use of water resources.

(2) In the alternative, even if the public trust
doctrine applies to [Lot 41], Plaintiff's claim that an
agency violated the public trust doctrine by approving the
revocable permit at issue here, notwithstanding Plaintiff's
opposition to that approval before the agency, requires an
inherently fact-based balancing analysis of that agency's
decision, which is not appropriate for determination on
summary judgment.

The circuit court then granted the Board's and

Resorttrust's motions for summary judgment referencing its

denial of Frankel's motion for partial summary judgment stating

it "has already ruled that the public trust doctrine does not

apply to [Lot 41], which is designated urban district land. The

Supreme Court of Hawai‘i has only applied the public trust

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doctrine to conservation district lands and use of water

resources."

Frankel filed a timely notice of appeal.

II. STANDARDS OF REVIEW

We review the grant or denial of summary judgment de

novo. Villaver v. Sylva, 145 Hawaiʻi 29, 34, 445 P.3d 701, 706

(2019). "When both sides move for summary judgment and the

trial court grants one motion and denies the other, the

reviewing court should review both sides' summary judgment

evidence and determine all questions presented." Ke Kauhulu O

Mānā v. Bd. of Land & Nat. Res., 154 Hawai‘i 158, 547 P.3d 1188,

No. CAAP-XX-XXXXXXX, 2024 WL 1886115, at *7 (App. Apr. 30, 2024)

(mem. op.) (citation omitted), cert. granted, No. SCWC-18-

0000057, 2024 WL 3582474 (Haw. 2024).

"[W]hether or not an agency has followed proper

procedures or considered the appropriate factors in making its

determination is a question of law, and will be reviewed de

novo." Sierra Club v. Dep't of Transp. (Superferry), 115 Hawai‘i

299, 315, 167 P.3d 292, 308 (2007) (emphasis omitted).

Motions for reconsideration are reviewed for an abuse

of discretion. Kaleikini v. Yoshioka, 128 Hawai‘i 53, 68, 283

P.3d 60, 75 (2012).

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III. LEGAL LANDSCAPE

A. The Public Trust Doctrine

Historically, "the Hawaiian people maintained a

communal stewardship over the land, ocean, and all of the

natural resources of the islands." MacKenzie, supra, at 6-7.

Today, in this decision, we look to Hawaii's constitution

(article XI, section 1 and article XII, section 4) and a seminal

Hawai‘i Supreme Court case (Waiāhole I) to understand the State's

responsibility to ceded lands held in trust for the people of

Hawai‘i.

1. Hawai‘i Constitution Article XI, Section 1 - Natural
Resources Held in Public Trust

Ratified in 1978, article XI, section 1 (Natural

Resources Trust) of the Hawai‘i Constitution enshrined the

State's commitment to uphold the centuries-old public trust

doctrine, particularly in light of the state's growing

population and increased demand for our natural resources:

ARTICLE XI

. . . .

CONSERVATION AND DEVELOPMENT OF RESOURCES

Section 1. For the benefit of present and future
generations, the State and its political subdivisions shall
conserve and protect Hawaii's natural beauty and all
natural resources, including land, water, air, minerals and
energy sources, and shall promote the development and
utilization of these resources in a manner consistent with
their conservation and in furtherance of the self-
sufficiency of the State.

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All public natural resources are held in trust by the
State for the benefit of the people.

Haw. Const. art. XI, § 1 (underline added).

The standing committee report from the 1978

Constitutional Convention demonstrates the primacy of natural

resource conservation over financial gain:

In the present Constitution, the policy with regard to
natural resources seems to be overly weighted by the
emphasis on development and utilization. Though the use of
our natural resources is necessary it must be done in such
a manner as to ensure the optimum long-term benefits for
the inhabitants of our State. The development and use of
natural resources must be consistent with their
conservation for future availability.

When considering use and development of our natural
resources, economic and social benefits are major concerns.
However, the broad definition of economics, that of
"careful and thrifty" use of the resources, rather than in
the narrow sense of immediate financial return, should be
adopted.

Comm. of the Whole Rep. No. 18, in 1 Proceedings of the

Constitutional Convention of Hawaii of 1978, at 1025–26 (1980)

(emphases added).

2. Hawai‘i Constitution Article XII, Section 4 - Ceded
Lands Held in Public Trust

Also ratified in 1978, article XII, section 4 (Ceded

Lands Trust) directed the state to hold the ceded lands as a

public trust for native Hawaiians and the general public:

ARTICLE XII

. . . .

PUBLIC TRUST

Section 4. The lands granted to the State of Hawaii by
Section 5(b) of the Admission Act and pursuant to
Article XVI, Section 7, of the State Constitution,

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excluding therefrom lands defined as "available lands" by
Section 203 of the Hawaiian Homes Commission Act, 1920, as
amended, shall be held by the State as a public trust for
native Hawaiians and the general public.

Haw. Const. art. XII, § 4 (underline added); see Ching, 145

Hawai‘i at 176, 449 P.3d at 1174 (defining "'ceded land' [as]

lands that were held by the civil government or the monarchy of

the Hawaiian Kingdom at the time of the 1893 overthrow of the

Hawaiian monarchy").

"Recognizing their special character, the Joint

Resolution of Annexation exempted these lands from the general

laws of the United States that governed federal land." Ching,

145 Hawai‘i at 176, 449 P.3d at 1174. Instead, these lands were

to "be held in a 'special trust' for the benefit of the people

of Hawai‘i" and later to be returned "subject to the trust

provisions set forth in section 5(f) of the Admission Act." Id.

Article XII, section 4 "formally recognize[s] these

responsibilities, specifying that the land 'shall be held by the

State as a public trust for native Hawaiians and the general

public." Id. at 177, 449 P.3d at 1175.

The Hawai‘i Supreme Court explained that "[t]he State's

duty of care is especially heightened in the context of ceded

land held in trust for the benefit of native Hawaiians and the

general public under article XII, section 4." Id. at 177 n.49,

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449 P.3d at 1175 n.49 (emphasis added). The court also

explained the unique connection Hawaiians have to the ‘āina. Id.

3. Waiāhole I (2000)

In Waiāhole I, decided twenty-five years ago, the

Hawai‘i Supreme Court surveyed and analyzed the public trust

doctrine, and then applied that doctrine to the resource at

issue - water. 94 Hawai‘i at 131–33, 9 P.3d at 443–45. The

court explained "that article XI, section 1 [(Natural Resources

Trust)] and article XI, section 7 [(Water Resources Trust)]

adopt the public trust doctrine as a fundamental principle of

constitutional law in Hawai‘i." 9 Id. at 132, 160, 9 P.3d at 444,

472 (footnote omitted).

9 Article XI, section 7 of the Hawaiʻi Constitution provides as
follows:

ARTICLE XI

. . . .

WATER RESOURCES

Section 7. The State has an obligation to protect,
control and regulate the use of Hawaii's water resources
for the benefit of its people.

The legislature shall provide for a water resources
agency which, as provided by law, shall set overall water
conservation, quality and use policies; define beneficial
and reasonable uses; protect ground and surface water
resources, watersheds and natural stream environments;
establish criteria for water use priorities while assuring
appurtenant rights and existing correlative and riparian
uses and establish procedures for regulating all uses of
Hawaii's water resources.

(Formatting altered.)

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The supreme court then set forth basic principles to

apply when contemplating whether to compromise a public trust

resource, including (1) the burden of the permit applicant,

(2) the duty of the permitting agency, and (3) the need for a

decision that reflects a clear analysis, which is subsumed

within the agency's duty. Id. at 143, 160, 9 P.3d at 455, 472.

First, the applicant wanting to compromise the public

trust resource has the burden of "justifying their proposed uses

in light of protected public rights in the resource." Id. at

142, 160, 9 P.3d at 454, 472. This includes showing mitigating

measures and the absence of practicable alternatives. Id. at

143, 161, 9 P.3d at 455, 474.

Next, the agency tasked with protecting the trust

resource "must not relegate itself to the role of a mere 'umpire

passively calling balls and strikes for adversaries appearing

before it,' but instead must take the initiative in considering,

protecting, and advancing public rights in the resource at every

stage of the planning and decisionmaking process." Id. at 143,

9 P.3d at 455 (citations omitted).

Competing interests must be assessed on a case-by-case

basis. Id. at 142, 9 P.3d at 454. "[A]ny balancing between

public and private purposes begin[s] with a presumption in favor

of public use, access, and enjoyment." Id. This is consistent

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with the 1978 Constitutional Convention delegates' definition of

"conservation," which is "the protection, improvement and use of

natural resources according to principles that will assure their

highest economic or social benefits." Id. at 139, 9 P.3d at 451

(quoting Stand. Comm. Rep. No. 77, in 1 Proceedings of the

Constitutional Convention of Hawaii of 1978, at 685–86 (1980))

(internal quotation marks omitted). "In short, the object is

not maximum consumptive use, but rather the most equitable,

reasonable, and beneficial allocation of [trust] resources, with

full recognition that resource protection also constitutes

'use.'" Id. at 140, 9 P.3d at 452 (emphasis added).

"Specifically, the public trust compels the state duly

to consider the cumulative impact of existing and proposed

diversions on trust purposes and to implement reasonable

measures to mitigate this impact, including the use of

alternative sources." Id. at 143, 9 P.3d at 455. "The trust

also requires planning and decisionmaking from a global, long-

term perspective." Id.

Increasingly important is our supreme court's

recognition that, although the public trust doctrine is elastic

and responsive to ever-shifting conditions, "the public trust

has never been understood to safeguard rights of exclusive use

for private commercial gain. Such an interpretation, indeed,

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eviscerates the trust's basic purpose of reserving the resource

for use and access by the general public without preference or

restriction." Id. at 135, 138, 9 P.3d at 447, 450 ("The public

trust, by its very nature, does not remain fixed for all time,

but must conform to changing needs and circumstances."). "[I]f

the public trust is to retain any meaning and effect, it must

recognize enduring public rights in trust resources separate

from, and superior to, the prevailing private interests in the

resources at any given time." Id. at 138, 9 P.3d at 450.

It logically follows that a "'higher level of

scrutiny' for private commercial uses" applies. Id. at 142, 9

P.3d at 454.

Finally, "where the record demonstrates considerable

conflict or uncertainty in the evidence, the agency must

articulate its factual analysis with reasonable clarity, giving

some reason for discounting the evidence rejected." Id. at 163-

64, 9 P.3d at 475–76. "In sum, the state may compromise public

rights in the resource pursuant only to a decision made with a

level of openness, diligence, and foresight commensurate with

the high priority these rights command under the laws of our

state." Id. at 143, 9 P.3d at 455. The agency's "basis must be

set forth with such clarity as to be understandable." Id. at

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163, 9 P.3d at 475 (citations and internal quotation marks

omitted).

B. Post Waiāhole I - Relevant Case Law

In the twenty-five years since Waiāhole I, the Hawai‘i

Supreme Court has issued a number of opinions that guide our

decision in this case. In particular, we look (chronologically)

at seven of these opinions to determine (1) whether the public

trust applies to ceded lands; (2) whether questions of an agency

following correct procedures or considering appropriate factors

may be determined as a matter of law; (3) how an agency makes

findings in its decision reflecting its public trust duty, or in

the absence of findings, shows how it arrived at its decision;

and (4) whether an agency may provide after-the-fact or extra-

record evidence on review or remand to show its compliance with

its public trust duties.

1. Superferry (2007)

In Superferry, decided eighteen years ago,

environmental groups sought a declaratory judgment that the

State of Hawai‘i Department of Transportation (DOT) and

Superferry company were required to prepare an environmental

assessment under HRS Chapter 343. 115 Hawai‘i at 304, 312, 167

P.3d at 297, 305. Although the Superferry decision did not

involve the public trust doctrine, it looked at whether an

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agency followed correct procedures and considered appropriate

factors. Id. at 317, 167 P.3d at 310.

The Hawai‘i Supreme Court explained "the dispute is

whether DOT was correct to analyze only the harbor improvements

in making its exemption determination, or was also required to

consider the potential environmental impacts caused by the

Hawaii Superferry project." Superferry, 115 Hawai‘i at 336, 167

P.3d at 329. The court further explained the "applicable

standard of review requires that this court determine, as a

matter of law, whether or not DOT has followed the correct

procedures and considered appropriate factors in making its

determination that the harbor improvements made to Kahului

harbor to facilitate the Superferry project should be exempted

from the requirements of HRS chapter 343." Id. at 342, 167 P.3d

at 335 (emphasis added).

The supreme court then determined "the record in this

case shows that DOT did not consider whether its facilitation of

the Hawaii Superferry Project will probably have minimal or no

significant impacts, both primary and secondary, on the

environment." Id. (emphasis added). It thus held, "based on

this record, we can only conclude that DOT's determination that

the improvements to Kahului Harbor are exempt from the

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requirements of [the Hawai‘i Environmental Policy Act (HEPA)] was

erroneous as a matter of law." Id.

The supreme court, inter alia, instructed the circuit

court to enter judgment in favor of the environmental groups on

their claim as to the request for an environmental assessment.

Id. at 343, 167 P.3d at 336.

The takeaway from Superferry, as relevant to this

appeal, is that the appellate court determines as a matter of

law whether an agency followed the correct procedures and

considered the appropriate factors in its decisionmaking.

2. Kauai Springs (2014)

In Kauai Springs, Inc. v. Planning Commission of

County of Kaua‘i, decided eleven years ago, a water bottling

company sought permits to continue operating its bottling

facility and a contested case hearing was held. 133 Hawai‘i 141,

147, 324 P.3d 951, 957 (2014). Kauai Springs, like Waiāhole I,

emphasized the agency's duty to make clear findings. Id. at

164, 324 P.3d at 974 (quoting Waiāhole I, 94 Hawai‘i at 157, 9

P.3d at 469).

In Kauai Springs, the Hawai‘i Supreme Court explained

that

[w]hen an agency or other deciding body considers an
application for permits under circumstances that requires
the deciding body to perform as a public trustee to protect
a public trust resource, the agency or other deciding body
must make findings sufficient to enable an appellate court

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to track the steps that the agency took in reaching its
decision.

Id. at 173, 324 P.3d at 983 (emphases added). "An agency is

encouraged to be clear; 'clarity in the agency's decision is all

the more essential . . . where the agency performs as a public

trustee and is duty bound to demonstrate that it has properly

exercised the discretion vested in it by the constitution and

the statute.'" Id. at 173-74, 324 P.3d at 983–84 (quoting

Waiāhole I, 94 Hawai‘i at 158, 9 P.3d at 470).

The supreme court emphasized that "[u]nder the

foregoing principles and purposes of the public trust, it is

manifest that a government body is precluded from allowing an

applicant's proposed use to impact the public trust in the

absence of an affirmative showing that the use does not conflict

with those principles and purposes." Id. at 174, 324 P.3d at

984 (emphasis added). And, "a lack of information from the

applicant is exactly the reason an agency is empowered to deny a

proposed use of a public trust resource." Id. (emphasis added).

The supreme court ultimately determined the Kaua‘i

County Planning Commission's findings were not clearly erroneous

and its conclusions were not wrong, thus, its denial of the

permit was not arbitrary and capricious. Id. at 181, 324 P.3d

at 991. Nevertheless, the court remanded the matter to the

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Planning Commission to clarify its findings and conclusions as

they "are essential when it performs as a public trustee." Id.

As relevant to this appeal, Kauai Springs repeated the

need for the agency's decision to be clear so as to show it

fulfilled its trust duties.

3. Mauna Kea II (2018)

In Matter of Conservation District Use Application HA-

3568 (Mauna Kea II), 10 decided seven years ago, the plaintiffs

appealed the BLNR's grant of the University of Hawaii's

application for development of the Thirty Meter Telescope (TMT)

following a contested case hearing. 143 Hawai‘i 379, 384, 387,

431 P.3d 752, 757, 760 (2018). The issue before the Hawai‘i

Supreme Court was "whether the BLNR properly applied the law in

analyzing whether a permit should be issued for the TMT." Id.

at 384, 431 P.3d at 757.

In addressing the public trust doctrine, the supreme

court stated it "has never precisely demarcated the dimensions

of the public trust doctrine as incorporated in Article XI,

Section 1" (Natural Resources Trust) and held that "conservation

district lands owned by the State, such as the lands in the

10 We refer to this opinion as Mauna Kea II because it is the follow-up
to Mauna Kea Anaina Hou v. Board of Land & Natural Resources, 136 Hawaiʻi 376,
363 P.3d 224 (2015), commonly known as Mauna Kea I. Both cases concern the
same application for a conservation district use permit submitted by the
University of Hawaiʻi to construct the Thirty Meter Telescope atop Mauna Kea
on Hawaiʻi Island.

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summit area of Mauna Kea, are public resources held in trust for

the benefit of the people pursuant to Article XI, Section 1."

Id. at 400, 431 P.3d at 773 (footnote omitted).

Relying on Waiāhole I, the supreme court reaffirmed

the requirements of article XI, section 1 such as the balancing

between the conservation and protection of public natural

resources and the development and utilization consistent with

conservation. Id. at 400-01, 431 P.3d at 773–74. The court

also reiterated that "any balancing between public and private

purposes must begin with a presumption in favor of public use,

access and enjoyment." Id. at 401, 431 P.3d at 774.

The supreme court then explained, "[i]n our de novo

determination of whether these requirements of Article XI,

Section 1 have been met, we consider relevant findings in the

BLNR Decision and Order." Id. Ultimately, the court held that

"TMT comport[ed] with Article XI, Section 1 public trust

principles and that the BLNR met its duties as trustee under the

Article XI, Section 1 public land trust through its Decision and

Order." Id. at 402, 431 P.3d at 775 (footnote omitted).

In holding that the "conservation district lands owned

by the State, such as the lands in the summit area of Mauna Kea,

are public resources held in trust for the benefit of the people

pursuant to Article XI, Section 1[,]" the supreme court noted in

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footnote 23 that "[o]ther types of public lands (and whether or

how public trust principles should apply to such lands) are not

before us at this time." Id. at 400, 400 n.23, 431 P.3d at 773,

773 n.23.

To that point, in footnote 24, the supreme court also

noted the plaintiffs only asserted violation of article XI,

section 1 (Natural Resources Trust) and did not assert a

violation of the "ceded lands trust" pursuant to section 5(f) of

the Admission Act or article XII, section 4 (Ceded Lands Trust)

of the Hawai‘i Constitution. Id. at 401 n.24, 431 P.3d at 774

n.24. The court explained that the ceded lands are subject to

specific purposes established in section 5(f) and are also

subject to article XII, section 4 (Ceded Lands Trust) and

article XVI, section 7 (Compliance with Trust) 11 of the Hawai‘i

Constitution. Id. ("Ceded lands are also subject to

Article XII, Section 4 of the Hawai‘i Constitution, which

11 Article XVI, section 7 of the Hawai‘i Constitution provides:

ARTICLE XVI

. . . .

COMPLIANCE WITH TRUST

Section 7. Any trust provisions which Congress shall
impose, upon the admission of this State, in respect of the
lands patented to the State by the United States or the
proceeds and income therefrom, shall be complied with by
appropriate legislation. Such legislation shall not
diminish or limit the benefits of native Hawaiians under
Section 4 of Article XII.

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provides that '[t]he lands granted to the State of Hawaii by

Section 5(b) of the Admission Act and pursuant to Article XVI,

Section 7 . . . shall be held by the State as a public trust for

native Hawaiians and the general public.'"). The court noted

that these "constitutional provisions and effectuating

legislation are not at issue in this case, but they may play a

part in defining public trust principles under Article XI,

Section 1 [(Natural Resources Trust)] with regard to

conservation district lands owned by the State." Id. (emphasis

added). The court then stated, "with respect to the Article XI,

Section 1 public trust as to conservation lands, we do not

wholesale adopt our precedent setting out public trust

principles as applied to the state water resources trust" and

"[r]ather the dimensions of this trust remain to be further

demarcated." Id. (emphasis added).

As relevant to this appeal, Mauna Kea II shows us that

beginning with a presumption in favor of public use, access, and

enjoyment is a basic trust duty, and not a procedure limited to

water resources. Also, Mauna Kea II recognized that ceded lands

are subject to article XII, section 4 (Ceded Lands Trust) of the

Hawaiʻi Constitution.

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4. Ching (2019)

In Ching, decided six years ago, 12 plaintiffs brought a

declaratory action against DLNR and BLNR claiming, "the State,

as trustee of the state's ceded lands, breached its trust duty

'to protect and maintain the public trust lands'" based on its

failure to monitor the U.S. military's compliance with the lease

of ceded lands in Hāmākua and North Kona for training purposes

within the Pōhakuloa Training Area (PTA). 13 145 Hawai‘i at 152,

154, 160, 449 P.3d at 1150, 1152, 1158 (brackets omitted).

Following a bench trial, the circuit court entered its findings,

conclusions, and order in favor of the plaintiffs and against

the State. Id. at 160, 162, 164, 449 P.3d at 1158, 1160, 1162.

The circuit court found the State breached its trust

duties by failing to (1) conduct reasonable inspections,

(2) ensure the terms of the lease impacting the condition of the

land or preserving cultural interests were followed, and

(3) take prompt steps when made aware of possible lease

violations. Id. at 164, 449 P.3d at 1163.

12 Ching was decided seventeen days after the circuit court in this
case denied Frankel's motion for partial summary judgment and three days
after granting the State's motion for summary judgment, but fourteen days
before Frankel's motion for reconsideration was filed.

13 Regarding the issue in Ching being a nonjusticiable political
question, the supreme court explained that "[i]t is well settled that the
determination of whether or not a particular proposed action, by the trustee
of a charitable trust, would constitute a breach of that trust, is a matter
to be determined by the courts, as part of their inherent jurisdiction." 145
Hawai‘i at 175, 449 P.3d at 1173 (citations omitted).

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On appeal, the State argued even if it had a public

trust duty, the circuit court erred because, "it was reasonable

for the State to delegate its duties and rely on its review of

ancillary documents to monitor the PTA." Id. at 179, 180, 449

P.3d at 1177, 1178 (emphasis added and footnote omitted).

"Typically, whether a fiduciary acted prudently -- or in other

words, as a reasonably prudent fiduciary -- is a question of

fact." Id. at 179, 449 P.3d at 1177 (emphasis added, citation

and internal quotation marks omitted); Knodle v. Waikiki Gateway

Hotel, Inc., 69 Haw. 376, 385, 742 P.2d 377, 383 (1987)

("Whether there was a breach of duty or not, i.e. whether there

was a failure on the defendant's part to exercise reasonable

care, is a question for the trier of fact.") (emphasis added).

The supreme court explained the "State's duties with

respect to the leased PTA land are derived in part from the

properties' status as 'ceded land' -- which are lands that were

held by the civil government or the monarchy of the Hawaiian

Kingdom at the time of the 1893 overthrow of the Hawaiian

monarchy." Ching, 145 Hawai‘i at 176, 449 P.3d at 1174. The

State conceded that "our case law and common law of trusts make

the State 'subject to certain general trust duties, such as a

general duty to preserve trust property.'" Id. at 177, 449 P.3d

at 1175.

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The supreme court held that delegating the State's

duties was inherently invalid under the Hawai‘i Constitution and

our common law of trusts. Id. at 180-81, 449 P.3d at 1178-79.

And even if it were permissible, the "delegation would itself

have to be reasonable under the prudent person standard, and the

State would maintain a trust duty to reasonably supervise the

agent in its performance of the monitoring." Id. at 181, 449

P.3d at 1179 (emphases added). Ultimately, the court held that

the circuit court did not err in its findings. Id. at 182, 449

P.3d at 1180.

As relevant to this appeal, the supreme court again

recognized that ceded lands are held in trust and the State has

a duty to preserve that trust resource. And whether the State

acted as a reasonably prudent fiduciary in preserving that trust

resource is a question of fact.

5. In re MECO (2022)

In Matter of Maui Electric Co. (In re MECO), decided

three years ago, appellants asked the Hawai‘i Supreme Court to

vacate the Public Utilities Commission (PUC)'s approval of a

power purchase agreement contending, in part, "that the PUC

failed to fulfill its public trust duties." 150 Hawai‘i 528,

531, 532, 506 P.3d 192, 195, 196 (2022). Specifically,

appellants maintained "the PUC should have made explicit

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findings identifying the affected trust resources and assessing

how they would be protected." Id. at 536, 506 P.3d at 200.

The supreme court held that "the statutes governing

the PUC's [power purchase agreement] review - HRS §§ 269-6(b)

and 269-145.5(b) - reflect the core public trust principles: the

State and its agencies must protect and promote the justified

use of Hawai‘i's natural beauty and natural resources." Id. at

532, 506 P.3d at 196. "Thus, when there is no reasonable threat

to a trust resource, satisfying those statutory provisions

fulfills the PUC's obligations as trustee." Id. "But when a

project poses a reasonable threat, the public trust principles

require more from the PUC: the commission must assess that

threat and make specific findings about the affected trust

resource." Id.

The supreme court held "the 'public interest'-minded

balancing requirement under HRS §§ 269-6(b) and 269-145.5(b)

aligns with the core public trust principles weighing protection

and utilization." Id. at 538, 506 P.3d at 202. The "PUC

considered [the selected company's] efforts to explore an

alternative site[,]" among other factors and found that

relocation "was not feasible due to archaeological, cultural,

and topographical concerns." Id. at 540, 506 P.3d at 204.

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"The PUC did not make explicit findings about its

public trust duties in the Approval Order. But its Recon Order

concluded that it had fulfilled its public trust duties by

satisfying its obligations under HRS §§ 269-6(b) and 269-

145.5(b)." Id.

The supreme court affirmed the PUC's approval of the

power purchase agreement. Id. at 541, 506 P.3d at 205.

As relevant to this appeal, In re MECO shows us that

an agency's failure to make findings regarding its public trust

duties is not always fatal. In the absence of explicit findings

regarding its public trust duties, an agency's decision may

nonetheless be upheld if there was no reasonable threat to the

trust resource or the public record shows it fulfilled its

public trust duty.

6. Carmichael (2022)

In Carmichael v. Board of Land and Natural Resources,

decided three years ago, plaintiffs brought a declaratory action

against DLNR and BLNR among others claiming violation of HRS

Chapter 343 where, like this case, "revocable permits were

annually 'continued' by a process in which the BLNR reviewed and

voted to approve for continuation a 'master listing' of hundreds

of revocable permits submitted by DLNR." 150 Hawai‘i 547, 555-

56, 506 P.3d 211, 219-20 (2022). The temporary permits at issue

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in Carmichael were renewed for ten years. Id. at 555, 506 P.3d

at 219.

On appeal to the ICA, this court determined that

"there were genuine issues of material fact as to whether the

BLNR's continuance decision (1) was temporary or de facto

indefinite, and (2) served the best interests of the State, such

that it was inappropriate to dispose of this case at the summary

judgment stage." Id. at 562, 506 P.3d at 226 (cleaned up).

However, the supreme court held the ICA "erred by

ruling on the basis of perceived issues of material fact." Id.

The supreme court explained, "HRS § 171-55 did not authorize the

BLNR's 2014 continuation decision because the BLNR did not make

factual findings or enter conclusions of law positing that it

was serving the State's best interests" and "[a]s a trustee of

the public trust, the BLNR failed to demonstrate that it

properly exercised the discretion vested in it by the

constitution and the statute." Id.; see HRS § 171-55 (2011)

("[T]he [BLNR] may issue permits for the temporary occupancy of

state lands . . . on a month-to-month basis . . . under

conditions and rent which will serve the best interests of the

State[.]") (emphasis added).

The supreme court reiterated the fundamental principle

that the public trust "requires that state agencies 'must take

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the initiative in considering, protecting, and advancing public

rights in the resource at every stage of the planning and

decision-making process.'" Id. at 566, 506 P.3d at 230

(citation omitted). "In particular, where an agency performs as

a trustee, it is 'duty bound to demonstrate that it has properly

exercised the discretion vested in it by the constitution and

the statute.'" Id. (citations omitted).

The supreme court determined the permit continuation

"was not authorized by HRS § 171-55 because the BLNR did not

make any findings of fact or conclusions of law." Id. The

court noted that "the BLNR's failure to make findings here was

particularly troubling in light of the magnitude of the water

diversions authorized and the BLNR's role as a public trustee of

the State's water resources." Id. at 567, 506 P.3d at 231. The

court explained that while it does "not fully set out the scope

of BLNR's duty to make the requisite findings, we note that the

duty may vary in conjunction with the resources implicated" and

"[a]t minimum, the BLNR must make findings 'sufficient to enable

an appellate court to track the steps that the agency took in

reaching its decision.'" Id. (emphases added) (citing Kauai

Springs, 133 Hawai‘i at 173, 324 P.3d at 983).

The supreme court affirmed the circuit court's order

granting the plaintiffs' motion for summary judgment as to its

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conclusion that the revocable permits were not authorized under

HRS § 171-55. 150 Hawai‘i at 572, 506 P.3d at 236.

As relevant to this appeal, the supreme court again

emphasized the need for an agency's decision to be clear. Where

the agency failed to make findings regarding a factor it was

required to consider - serving the best interest of the State -

the agency failed to demonstrate it properly exercised its

discretion.

7. Kia‘i Wai (2022)

Finally, in Kia‘i Wai v. Department of Water, also

decided three years ago, the Kaua‘i Department of Water (KDOW)

proposed to install a water transmission line and obtained a

finding of no significant impact. 151 Hawai‘i 442, 447, 517 P.3d

725, 730 (2022). Kia‘i Wai filed a complaint contending, inter

alia, that KDOW violated its trust obligations. Id. at 452, 517

P.3d at 735. KDOW moved for, and the circuit court granted,

summary judgment. Id. at 453, 517 P.3d at 736.

Although the supreme court did not reach the public

trust issue, the court explained that "whether or not an agency

has followed proper procedures or considered the appropriate

factors in making its determination is a question of law, and

will be reviewed de novo." Id. at 454, 517 P.3d at 737

(emphasis added and citation omitted). The supreme court

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further explained that appellate courts "must take a close look

at agency decisions that involve the public trust" and "agency

decisions affecting public trust resources carry a presumption

of validity." Id. at 454-55, 517 P.3d at 737–38 (cleaned up).

The supreme court held KDOW "failed to properly

consider increased water withdrawals as a secondary impact"

because the finding that water withdrawals will not increase was

clearly erroneous and the department "misapplied HEPA by

limiting its review to the physical footprint of the project and

failing to consider secondary impacts beyond the project site."

Id. at 455, 517 P.3d at 738.

The supreme court explained, that based on the record

before it, "there can be no dispute that KDOW failed to take the

required 'hard look' at the possibility of increased water

usage." Id. at 460, 517 P.3d at 743. "If KDOW can demonstrate

the relief line will likely not increase water withdrawals, it

must do so in a revised [environmental assessment]. That is,

KDOW cannot merely present additional evidence to the

environmental court on remand." Id.

The supreme court further explained that "while

plaintiffs may present extra-record evidence to identify issues

with the environmental review process, an agency cannot rely on

extra-record evidence as a substitute for analysis the agency

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should have included in an environmental review document." Id.

(some emphasis added).

If the agency knew that it could always 'supplement' or
'create' the administrative record in the reviewing court,
then the agency would have little incentive to prepare an
adequate and reviewable administrative record, despite the
clear mandate of [the National Environmental Policy Act
(NEPA)] and HEPA that the agency prepare the required
record before deciding upon a particular course of conduct.

. . . .

Additionally, it would frustrate public participation in
the HEPA process if agencies could remedy deficient HEPA
analysis with evidence submitted to a court after-the-
fact. . . . While it may sometimes be appropriate for
agencies to submit extra-record evidence -- for example, to
provide context, explain their procedures, or rebut the
plaintiffs' evidence -- courts must not allow that evidence
to pass as explanations or justifications that should have
been in the environmental review documents in the first
place.

Id. at 460-61, 517 P.3d at 743–44 (cleaned up). "Further, HEPA,

like NEPA, 'expressly places the burden of compiling information

on the agency so that the public and interested government

departments can conveniently monitor and criticize the agency's

action.'" Id. at 461, 517 P.3d at 744 (citation omitted).

The supreme court vacated the circuit court's judgment

and remanded the case for further proceedings consistent with

its opinion. Id. at 467, 517 P.3d at 750.

As relevant to this appeal, the supreme court again

explained that whether an agency followed correct procedures or

considered appropriate factors in making its decision are

questions of law. Of particular note, the supreme court

restricted what an agency may present when its decision is on

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review, and warned that extra-record evidence cannot be used to

explain what should have been included in the agency's decision.

8. Summary

In surveying these supreme court opinions, we glean

the following:

First, the Hawai‘i Supreme Court clarified that the

public trust doctrine applies to ceded lands. Ching, 145 Hawai‘i

at 176-77, 449 P.3d at 1174-75.

Second, whether an agency followed the correct

procedure or considered the appropriate factors are legal

questions that may be determined as a matter of law.

Superferry, 115 Hawai‘i at 317, 167 P.3d at 310; Kia‘i Wai, 151

Hawai‘i at 454, 517 P.3d at 737. This is different from

determining whether the agency failed to exercise reasonable

care in executing its trust duties, which is a factual question

as it generally requires the weighing of evidence and

determining the credibility of witnesses. See Ching, 145 Hawai‘i

at 152, 179, 180, 449 P.3d at 1150, 1777, 1178.

Weighing of evidence and determining the credibility

of witnesses are not part of the appellate review to determine

whether the agency followed correct procedures or considered

appropriate factors. See id. at 152, 179, 180, 449 P.3d at

1150, 1777, 1178; Superferry, 115 Hawai‘i at 317, 167 P.3d at

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310; Kia‘i Wai, 151 Hawai‘i at 454, 517 P.3d at 737. Whether

correct procedures were followed and appropriate factors were

considered should be evident from the agency decision itself or

in the record available to the public. See Superferry, 115

Hawai‘i at 342, 167 P.3d at 335; Kia‘i Wai, 151 Hawai‘i at 460-61,

517 P.3d at 744-45 ("[I]f the agency knew that it could always

'supplement' or 'create' the administrative record in the

reviewing court, then the agency would have little incentive to

prepare an adequate and reviewable administrative record[.]")

(cleaned up).

The supreme court in Superferry and Kia‘i Wai

considered the agency's duty in the context of the agency's

compliance with its statutory mandate under HEPA. Superferry,

115 Hawai‘i at 317, 167 P.3d at 310; Kia‘i Wai, 151 Hawai‘i at

460, 517 P.3d at 743. Our consideration of whether an agency

followed the correct procedure or considered appropriate factors

is no different here, where the agency's duty is set forth in

common law. See generally Waiāhole I, 94 Hawai‘i at 130-31, 9

P.3d at 442-43.

Third, the Hawai‘i Supreme Court has been consistent in

its mandate from Waiāhole I that an agency make clear findings.

Kauai Springs, 133 Hawai‘i at 164, 324 P.3d at 974; see

Carmichael, 150 Hawai‘i at 567, 506 P.3d at 231. Where an

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agency's findings reflect that trust resources were protected

and not compromised, the agency's decision may be upheld. See

generally In re MECO, 150 Hawai‘i at 532, 540, 506 P.3d at 196,

204. But where an agency's decision fails to "articulate its

factual analysis with reasonable clarity" when compromising a

public trust resource, the agency's decision may be vacated.

Waiāhole I, 94 Hawai‘i at 163-64, 9 P.3d at 475–76.

Finally, an agency does not get a do-over of its

decision-making process on appellate review or in a declaratory

action. See Kia‘i Wai, 151 Hawai‘i at 460, 517 P.3d at 743

(explaining that "an agency cannot rely on extra-record evidence

as a substitute for analysis the agency should have included" in

its decision or on the record). While the court's review in

Kia‘i Wai was in the context of the agency's statutory HEPA

mandate, we see no reason why the court's reasoning - that "[i]f

the agency knew that it could always 'supplement' or 'create'

the administrative record in the reviewing court, then the

agency would have little incentive to prepare an adequate and

reviewable administrative record" - should not similarly apply

to the agency decision here. Id. (citation and internal

quotation marks omitted).

We address Frankel's appeal in light of the above

principles from these Hawaiʻi Supreme Court opinions.

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IV. DISCUSSION

As stated earlier, the circuit court granted the

Board's and Resorttrust's motions for summary judgment, ruling

the public trust doctrine did not apply to Lot 41 because it was

zoned urban. The circuit court denied Frankel's motion for

partial summary judgment for the same reason, and added that

even if the public trust doctrine applied to Lot 41, whether the

agency violated the public trust doctrine "requires an

inherently fact-based balancing analysis" not appropriate for

summary judgment.

On appeal, Frankel raises five points of error (POE),

contending the circuit court erred when it:

(1) "held that trust principles do not apply to Lot 41";

(2) "held that a court cannot conclude that a breach of
trust occurred in the context of a summary judgment
motion even when no facts are in dispute";

(3) "denied [his] motion for partial summary judgment as
to Count 4";

(4) "granted summary judgment to all the defendants as to
Count 4"; and

(5) "denied [his] motion for reconsideration of the three
orders relating to count 4" that he brought pursuant
to Ching.

As explained below, we hold that the circuit court

erred because public trust principles applied to Lot 41, Frankel

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met his summary judgment burden, and the Board and Resorttrust

did not meet their summary judgment burden.

A. Public Trust Principles Apply to Lot 41 (POE 1 & 5)

On appeal, Frankel contends the circuit court erred in

determining that public trust principles did not apply to

Lot 41. To support his contention, Frankel relies in part on

article XII, section 4 (Ceded Lands Trust) and article XI,

section 1 (Natural Resources Trust) of the Hawai‘i Constitution.

It is undisputed that Lot 41 is part of the "[s]ection

5(b) lands of the Hawaii Admission Act" and, thus, is ceded

land. The Admission Act mandated these lands be held in public

trust. The Admission Act, 1959, Pub. L. No. 86-3, § 5(f), 73

Stat. 4, reprinted in 1 HRS at 136–37 (2009).

Since 1978, the ceded lands were expressly held in

public trust under article XII, section 4 (Ceded Lands Trust) of

the Hawai‘i Constitution. The burdens and duties of article XII,

section 4's public trust mandate, like that of article XI,

section 1 (Natural Resources Trust), are guided by the

principles set forth in Waiāhole I. 94 Hawai‘i at 131–32, 9 P.3d

at 443–44. Again, these principles instruct as to (1) the

burden of the applicant requesting to compromise a trust

resource, (2) the duty of the agency entrusted with protecting

the trust resource, and (3) the need for decisions to reflect

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clear analysis, which is subsumed within the agency's duty. Id.

at 143, 160, 163-64, 9 P.3d at 455, 472, 475-76.

In addition, the applicant's burden and agency's duty

set forth in Waiāhole I are heightened due to the special

character of, and the complicated history surrounding, ceded

lands. See Ching, 145 Hawai‘i at 177 n.49, 449 P.3d at 1175 n.49

("The State's duty of care is especially heightened in the

context of ceded land held in trust for the benefit of native

Hawaiians and the general public under article XII,

section 4.").

Finally, the applicant's burden and agency's duty are

subject to a higher level of scrutiny in this case because the

proposed use is a private commercial use. Waiāhole I, 94 Hawai‘i

at 142, 9 P.3d at 454.

As set forth in article XII, section 4 (Ceded Lands

Trust) of the Hawai‘i Constitution and Ching, the public trust

applies to ceded lands and, thus, applies to Lot 41. We

therefore hold the circuit court was wrong in concluding public

trust principles did not apply to Lot 41.

B. Frankel's Motion for Partial Summary Judgment (POE 2 & 3)

The circuit court erred in denying Frankel's motion

for partial summary judgment because the evidence, even when

viewed in the light most favorable to the Board and Resorttrust,

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did not show that the Board (1) began with the presumption in

favor of public use, (2) considered alternatives, or

(3) provided a clear analysis when it issued a permit that

compromised a public trust resource.

1. Summary Judgment Burden

The burden is on the party moving for summary judgment

"to show the absence of any genuine issue as to all material

facts, which, under applicable principles of substantive law,

entitles the moving party to judgment as a matter of law."

Umberger v. Dep't of Land & Nat. Res., 140 Hawai‘i 500, 528, 403

P.3d 277, 305 (2017) (cleaned up). The movant must satisfy two

components in order to meet its burden. Ralston v. Yim, 129

Hawai‘i 46, 56, 292 P.3d 1276, 1286 (2013).

The movant has the burden of production - to show

there is not a genuine issue of material fact as to the

essential elements of the claim and that it is entitled to a

judgment as a matter of law. Id. The movant also bears the

burden of persuasion - to convince the court that there is no

genuine issue of material fact and the movant is entitled to

judgment as a matter of law. Id. at 57, 292 P.3d at 1287.

If the plaintiff, who has the burden of proof at

trial, is the movant, "the plaintiff must establish, as a matter

of law, each element of its claim for relief by the proper

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evidentiary standard applicable to that claim." Ocwen Fed.

Bank, FSB v. Russell, 99 Hawai‘i 173, 182-83, 53 P.3d 312, 321-22

(2002).

If the plaintiff as the movant satisfies this burden,

the burden then shifts to the nonmoving party defendant to

"demonstrate the existence of a triable, material factual issue

on the plaintiff's claims" or adduce "evidence of material facts

which demonstrate the existence of affirmative defenses that

would defeat the plaintiff's claim." Id. at 183, 53 P.3d at

322.

2. Procedural Requirements for an Agency Determining
Whether to Compromise a Public Trust Resource

In his summary judgment motion, Frankel asserted four

bases for the Board's breach of its public trust duties:

(1) failure to enforce the permit conditions in the past;

(2) failure to start with the presumption in favor of public

use; (3) failure to consider alternatives; and (4) failure to

provide clarity in its decision. The first basis is a

substantive challenge, 14 while the other three are procedural.

We address the three procedural challenges, and do not reach the

substantive challenge.

14 Asserting a substantive breach of an agency's public trust duty is a
fact-based dispute that requires application of the standard set forth in
Ching. The circuit court here, in its alternate ruling, characterized
Frankel's breach of trust challenge as a substantive challenge requiring
resolution of disputed material facts.

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When compromising a public trust resource, Hawai‘i law

requires the agency entrusted to protect that trust resource to

(1) begin its analysis with the presumption in favor of public

use when balancing between public and private purposes,

(2) consider practicable alternatives, and (3) set forth its

decision with clarity. Waiāhole I, 94 Hawai‘i at 142, 143, 158,

171, 9 P.3d at 454, 455, 470, 483.

Whether an agency has considered the appropriate

factors or followed the proper procedures are questions of law.

Superferry, 115 Hawai‘i at 315, 167 P.3d at 308; Kia‘i Wai, 151

Hawai‘i at 454, 517 P.3d at 737. As a question of law, the

agency's decision is not entitled to deference. See Kaleikini,

128 Hawai‘i at 79, 283 P.3d at 86 (explaining that "whether or

not an agency has followed proper procedures . . . in making its

determination is a question of law and will be reviewed de novo"

and, thus, "the agency is not entitled to deference" (citation

and internal quotation marks omitted)); Ho‘omoana Found. v. Land

Use Comm'n, 152 Hawai‘i 337, 343, 526 P.3d 314, 320 (2023)

(explaining that "questions regarding procedural defects are

reviewable under [HRS § 91-14(g)](3)" where the agency decision

was "[m]ade upon unlawful procedure" (citations omitted)); In re

Robert's Tours & Transp., Inc., 104 Hawai‘i 98, 102, 85 P.3d 623,

627 (2004) (explaining that under HRS § 91-14(g) "we see no

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reason why the standards of review for an agency decision should

differ depending on whether the appeal arises from a contested

or noncontested case").

Here, the Board did not make explicit findings showing

it fulfilled these three procedural requirements in executing

its public trust duties. Pursuant to In re MECO, even in the

absence of explicit public trust findings in the agency's

decision, the decision may nonetheless be upheld if the public

record reflects an application of the public trust principles.

150 Hawai‘i at 540, 506 P.3d at 204.

Applied here, if the evidence before the circuit court

did not show in publicly available information that the Board

considered alternatives, Frankel was entitled to judgment as a

matter of law because the Board failed to consider the

appropriate factors in compromising the public trust resource.

See id.; Superferry, 115 Hawai‘i at 315, 167 P.3d at 308; Kia‘i

Wai, 151 Hawai‘i at 454, 517 P.3d at 737. And if the evidence

before the circuit court did not show in publicly available

information that the Board began with the presumption in favor

of public use or articulated its decision to compromise the

public trust resource with clarity, Frankel was also entitled to

judgment as a matter of law because the Board failed to follow

the proper procedure. See In re MECO, 150 Hawaiʻi at 540, 506

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P.3d at 204; Waiāhole I, 94 Hawai‘i at 142, 158, 167 P.3d at 454,

470; Kia‘i Wai, 151 Hawai‘i at 454, 517 P.3d at 737.

3. Frankel Met His Burden

The circuit court record contained the following

pertinent evidence: (1) the June 2018 letter from Sierra Club

and July 2018 letter from Hawaii's Thousand Friends; (2) the

September 2018 and November 2018 testimonies from Frankel; 15

(3) the September 2018 staff submittal and meeting minutes;

(4) the November 2018 staff submittal and meeting minutes; and

(5) the January 29, 2019 Permit.

The letters from Sierra Club and Hawaii's Thousand

Friends, as well as Frankel's testimonies, 16 placed the issue of

the Board's public trust duties squarely before the Board. But

the September 2018 staff submittal and minutes, the November

2018 staff submittal and minutes, and the January 29, 2019

permit did not show that the Board, in compromising a public

trust resource, (1) started with the presumption in favor of

public use, (2) considered alternatives, and (3) provided

clarity in its decision.

15 See Agenda Item D-17: Annual Renewal of Revocable Permits on the

Island of Oahu, Meeting Before the Board of Land and Natural Resources, at
37–38 (written testimony of David Kimo Frankel) for Frankel's November 2018
testimony.

16 See id.

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The Board's September 2018 staff submittal identified

Lot 41 as part of "Section 5(b) lands of the Hawaii Admission

Act," or ceded lands. The submittal did not reference the

Board's constitutional and public trust duties regarding ceded

lands, however.

There was nothing in the September 2018 staff

submittal to show that the Board began with the presumption in

favor of public use. The September 2018 staff submittal did not

mention article XI, section 1 (Natural Resources Trust) and

article XII, section 4 (Ceded Lands Trust) of the Hawai‘i

Constitution or the public trust; the only legal references in

the document were HRS § 171-55, HAR § 11-200-8, HAR Chapter 11-

200, and HRS Chapter 343.

The justification for the permit was to "regulate the

hotel's improvements and activities at the subject location,"

noting the property's unsuitability for public auction lease,

and the hotel's withdrawal of its draft environmental

assessment. There was no mention of the presumption in favor of

public use or consideration of alternate sites.

The September 2018 staff submittal explained public

access was always required and there were prior incidents where

access was denied. The submittal also explained Resorttrust

made a "promise" to comply with the requirement of public

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access. 17 This analysis does not establish that the Board, in

determining whether to compromise public use of Lot 41, began

with the presumption in favor of public use.

Like the September 2018 staff submittal, the September

2018 meeting minutes, the November 2018 staff submittal, the

November 2018 meeting minutes, and the January 29, 2019 permit

do not reflect that the Board, in compromising a public trust

resource, (1) started with the presumption in favor of public

use, (2) considered alternatives, and (3) provided clarity in

its decision.

Thus, Frankel met his burden of showing the Board did

not consider the appropriate factors and did not follow the

correct procedures in rendering its decision to compromise a

public trust resource.

4. The Board and Resorttrust Did Not Meet Their Burden

The burden then shifted to the Board and Resorttrust

to show there were genuine issues of material fact as to

whether, or present evidence of where, the Board followed the

procedural requirements for agency public trust decisionmaking

17 The Board considering Resorttrust's promise of public access is not
the same as starting its analysis with the presumption in favor of public use
when determining whether to compromise a public trust resource for private
commercial use. But, assuming arguendo that, when viewed in the light most
favorable to the State and Resorttrust, the promise of public access would
constitute sufficient evidence to survive summary judgment, the Board did not
meet the other procedural requirements of considering alternatives and
providing clarity in its decision.

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relevant here by (1) starting with the presumption in favor of

public use, (2) considering alternatives, and (3) providing

clarity in its decision. See Ocwen, 99 Hawai‘i at 183, 53 P.3d

at 322. The Board and Resorttrust did not meet their burden.

The Board argued the public trust doctrine did not

extend to urban-zoned land. In the alternative, the Board

asserted it was entitled to summary judgment because it easily

met the standards "for applying the public trust doctrine."

Specifically, the Board stated it "could have - but did not -

allow commercial use of Lot 41" and "could have - but did not -

lease Lot 41 or otherwise afford exclusive rights to a private

party." These statements appear to imply that the public is

fortunate the Board did not compromise the public resource even

more than it did. But these statements do not demonstrate the

Board began with the presumption in favor of public use or

considered alternatives.

Nowhere in its memorandum in opposition did the Board

cite to where in the record it started with the presumption in

favor of public use or where it considered alternate sites upon

which Resorttrust could place the items it wanted to place on

ceded land. See generally Int'l Bhd. of Elec. Workers, Loc.

1357 v. Hawaiian Tel. Co., 68 Haw. 316, 332, 13 P.2d 943, 956

(1986) (emphasizing "again that an appellate court is not

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required to sift through a voluminous record for documentation

of a party's contention") (footnote omitted).

In its memorandum in opposition to Frankel's summary

judgment motion, Resorttrust similarly argued Frankel's claim

failed as a matter of law because he "cannot demonstrate the

State's public trust obligations apply to" Lot 41. (Formatting

altered.) In the alternative, Resorttrust maintained the permit

does not substantially impair Lot 41 and the conditions imposed

upon it shows the Board considered public interests. Finally,

Resorttrust argued Frankel ignored the hours of testimony

presented at the September and November 2018 meetings.

Resorttrust, however, did not identify where in the

record (or where in the hours of hearing testimony) the Board

started with the presumption in favor of public use or

considered alternatives.

Resorttrust also did not identify where in the record

it met its burden of providing the Board with information for

consideration of alternate sites for the items it sought to

place on ceded land. This alone was a basis to deny

Resorttrust's application. See generally Kauai Springs, 133

Hawai‘i at 174, 324 P.3d at 984 (explaining that "a lack of

information from the applicant is exactly the reason an agency

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is empowered to deny a proposed use of a public trust

resource").

Notably, Resorttrust attached a 2016 "Report and

Recommendations from the [DLNR] Revocable Permits Task Force"

as an exhibit. The task force stated its "priority was to be

mindful of our obligations to the Public Trust and stewardship

overseeing these public lands." The attached Revised Template

resembled the format used in the September 2018 staff submittal.

The Revised Template, however, did not mention the public trust

or provide direction for the staff to incorporate the agency's

public trust duties in their submittals and recommendations to

the Board.

5. Conclusion

In conclusion, even when viewing the evidence in the

light most favorable to the Board and Resorttrust, the record

does not establish that the Board complied with the three

procedural requirements for agency public trust decisionmaking

relevant here - (1) starting with the presumption in favor of

public use, (2) considering alternatives, and (3) providing

clarity in its decision. Thus, the Board's decision compromised

a public trust resource, ceded lands, without the required

"level of openness, diligence, and foresight" our state law

requires. See Waiāhole I, 94 Hawai‘i at 143, 9 P.3d at 455.

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Frankel was therefore entitled to judgment as a matter

of law on the procedural breach of trust challenges in his

motion for partial summary judgment, and his substantive breach

of trust challenge (which would require a reasonableness

determination and is a question of fact) need not be addressed.

Thus, the circuit court erred in denying Frankel's motion for

partial summary judgment and abused its discretion in denying

Frankel's motion for reconsideration brought pursuant to Ching.

C. Board's and Resorttrust's Motions for Summary Judgment
(POE 4)

The circuit court granted the Board's and

Resorttrust's motions for summary judgment referencing its

denial of Frankel's motion for partial summary judgment and

stating it "has already ruled that the public trust doctrine

does not apply to [Lot 41], which is designated urban district

land. The Supreme Court of the State of Hawai‘i has only applied

the public trust doctrine to conservation district lands and use

of water resources." However, the Board and Resorttrust did not

demonstrate that Frankel could not carry his burden of proof at

trial.

1. Summary Judgment Burden

A defendant movant "may satisfy [its] initial burden

of production by either (1) presenting evidence negating an

element of the non-movant's claim, or (2) demonstrating that the

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[non-movant] will be unable to carry his or her burden of proof

at trial." Ralston, 129 Hawai‘i at 60, 292 P.3d at 1290. "Where

the movant attempts to meet his or her burden through the latter

means, he or she must show not only that the non-movant has not

placed proof in the record, but also that the movant will be

unable to offer proof at trial." Id. at 60-61, 292 P.3d at

1290-91 (emphasis omitted).

2. The Board Did Not Meet Its Burden

In Count 4 of his complaint, Frankel made numerous

allegations (numbers 99-111) to support his claim that the Board

breached its public trust duties, some procedural and some

substantive. If Frankel could prove any one of his allegations,

he would establish breach of the public trust.

To show it was entitled to summary judgment on Count 4

as a matter of law, the Board argued that the public trust did

not apply to urban-zoned land. If true, the inapplicability of

the public trust to Lot 41 would have defeated Frankel's breach

of public trust claim. However, contrary to the Board's

argument, the public trust applies to ceded lands and, thus,

applies to Lot 41. And none of the Board's other arguments

showed Frankel could not meet his burden at trial as to each

allegation supporting his breach claim in Count 4.

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3. Resorttrust Did Not Meet Its Burden

In its motion for summary judgment, Resorttrust

stated Frankel "attacks" the permit, "trying to impose his

desire for a less crowded beach" and "to change more than 50

years of the status quo and BLNR's long history of issuing

[revocable permits] for use of the State Parcel by the Hotel and

its guests, along with the general public." Resorttrust then

argued Frankel's "claim fails as a matter of law, because

(1) [he] cannot demonstrate the State's public trust obligations

apply to the State parcel, and (2) the Board properly discharged

its obligations." (Formatting altered.)

Like the Board, Resorttrust argued "aside from water

and Conservation District lands, the Court has not explicitly

ruled that public trust obligations must be fulfilled for other

types of lands, such as the State Parcel, which is designated in

the Urban District." Resorttrust also asserted the revocable

permit "clearly protects, and indeed facilitates, public use of

the State Parcel while balancing that with RTH's rights to use

the State Parcel for certain enumerated activities."

Resorttrust maintained "BLNR has exercised diligence and a high

standard of care to protect the State Parcel over the decades"

and "the conditions of the most recent [revocable permit]

evidence the BLNR's careful consideration of public interests in

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the State Parcel and beach, and include measures to further

protect those interests."

As discussed above, the public trust doctrine applies

to Lot 41. As for Resorttrust's secondary argument that the

Board met its obligations, none of its assertions showed Frankel

could not meet his burden at trial as to each allegation

underlying his breach claim such that Resorttrust was entitled

to a judgment as a matter of law.

4. Conclusion

Viewing the evidence in the light most favorable to

Frankel, the Board and Resorttrust did not meet their burden of

showing they were entitled to judgment as a matter of law on

each allegation supporting Frankel's breach claim. As the Board

and Resorttrust failed to meet their burden, the burden did not

shift to Frankel.

Because the Board and Resorttrust failed to show they

were entitled to judgment as a matter of law, the circuit court

erred in granting summary judgment in favor of the Board and

Resorttrust.

V. CONCLUSION

Based on the foregoing, we vacate the circuit court's

August 6, 2019 order denying Frankel's motion for partial

summary judgment and August 20, 2019 orders granting the Board's

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and Resorttrust's motions for summary judgment. We remand this

case to the circuit court for further proceedings consistent

with this opinion.

On the briefs: /s/ Karen T. Nakasone
Associate Judge
David Kimo Frankel,
Plaintiff-Appellant, pro se. /s/ Sonja M.P. McCullen
Associate Judge
William J. Wynhoff,
Deputy Attorney General,
for Defendant-Appellee
State of Hawaiʻi.

Jennifer A. Lim,
William M. Harstad,
Derek B. Simon,
(Carlsmith Ball),
for Defendant-Appellee
Resorttrust Hawaii LLC.

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OPINION BY HIRAOKA, J.
CONCURRING IN PART AND DISSENTING IN PART

I concur that the public trust doctrine applied to

BLNR's 2018 decision-making on Resorttrust's HRS § 171-55 permit

application because Lot 41 is ceded land.1 I also concur that
the agency record should let a reviewing court determine whether

BLNR followed proper procedure and considered appropriate factors

for issuing or continuing an HRS § 171-55 permit during a public

meeting. But I respectfully dissent from the majority's holding

that BLNR did not fulfill its public trust duty regarding Lot 41.

In my view, the record contains uncontroverted evidence showing

that BLNR followed proper procedure for decision-making in a

public meeting and acted as a reasonably prudent fiduciary of the

public trust by beginning with a presumption favoring public use,

access, and enjoyment; considering alternatives; and applying

public trust principles to its decision-making on Resorttrust's

permit application. I would affirm the order granting BLNR's

motion for summary judgment, but for reasons other than those
stated by the circuit court. See Reyes v. Kuboyama, 76 Hawai#i

137, 140, 870 P.2d 1281, 1284 (1994) (stating that "where the

circuit court's decision is correct, its conclusion will not be

disturbed on the ground that it gave the wrong reason for its

ruling").

1
Today's opinion should only apply to BLNR's 2018 decision to
approve Resorttrust's 2019 permit. That was the only subject of Frankel's
complaint. Frankel filed an amended complaint after the circuit court granted
BLNR's motion for summary judgment. The amended complaint added a claim that
BLNR breached its public trust duties in October 2019 by approving a revocable
permit for 2020. The parties did not move for summary judgment on the new
claim, the circuit court entered no order on that claim, and the First Amended
Final Judgment dismissed all claims that were not adjudicated.
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(1) As the majority notes, the supreme court has

stated, "any balancing between public and private purposes

begin[s] with a presumption in favor of public use, access, and

enjoyment." Waiâhole I, 94 Hawai#i at 142, 9 P.3d at 454. The

majority states, "[t]here was nothing in the September 2018 staff

submittal to show that the Board began with the presumption in

favor of public use." In my view, the majority's focus on Lot 41

disregards the broad scope of BLNR's public trust duty, which

"requires planning and decisionmaking from a global, long-term

perspective." Id. at 143, 9 P.3d at 455.

The 2018 staff submittal was not the only evidence

before the circuit court. In a 2011 public meeting, BLNR

approved a DLNR request "to designate additional properties for

income generation to support the management of lands under the

jurisdiction of the Land Board." Lot 41 was one of those

properties. The February 25, 2011 DLNR staff submittal — a

matter of public record — stated that staff reviewed "over 1,300

leases, permits, licenses, etc., managed by [DLNR's] Land

Division." Staff also reported that "revenues generated from

these additional properties are projected to result in

approximately $697,000 of additional revenue for the SLDF[2] to

2
DLNR's Special Land Development Fund, or SLDF, funds "planning,
development, management, operations, or maintenance of all lands and
improvements under the control and management of" BLNR, "management,
maintenance, and development of trails and trail accesses under the
jurisdiction of" DLNR, "protection, planning, management, and regulation of
water resources under chapter 174C [(the State Water Code)]," "invasive
species control and mitigation by the invasive species council under chapter
194," and "reforestation and sediment run-off mitigation," among other DLNR
functions. HRS § 171-19 (2011 & Supp. 2016).

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help fund the Department's efforts to manage and protect the

State's cultural, historic and natural resources." The

September 2018 DLNR staff submittal stated that Lot 41 was zoned

for urban use but was "unsuitable for public auction lease"

because of the "site issues" described in the submittal. This

shows that BLNR did "begin with a presumption in favor of public

use, access, and enjoyment" for all "lands and improvements under

[its] control and management[,]" HRS § 171-19(a)(2); balanced the

need to generate revenue to fund the SLDF; and decided that

Lot 41 should be used to generate income that would fund global,

long-term protection of all public lands.

(2) Citing Waiâhole I, 94 Hawai#i at 171, 9 P.3d at

483, the majority notes that BLNR must "consider practicable

alternatives" when compromising a public trust resource. The

majority then states BLNR did not show "it considered alternate

sites upon which Resorttrust could place the items it wanted to

place on ceded land." In my view, the majority's focus on

alternatives "such as asking [Resorttrust] to place the items on

its own property" instead of on Lot 41 is also too narrow. The

record shows that BLNR considered over 1,300 alternatives before

deciding that Lot 41 (among others) should be used for "income

generation to support the management of lands under the

jurisdiction of the Land Board." Cf. HRS § 171-55 (2011)

(requiring that temporary revocable permits be issued "under

conditions and rent which will serve the best interests of the

State"). Thus did the record show that BLNR did "consider

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practicable alternatives" before compromising exclusive public

use of Lot 41.

(3) The majority states that BLNR "did not make

explicit findings showing it fulfilled these three procedural

requirements in executing its public trust duties." Two of the

three cases cited by the majority — Waiâhole I and Kauai Springs

— involved contested case hearings where the agency was required

by HRS § 91-12 to make findings of fact. There is no similar

statutory requirement for agency decisions made in public

meetings. The third case, Carmichael, involved a decision made

in a public meeting. The supreme court still quoted Kauai

Springs to support its statement that "BLNR must make findings

'sufficient to enable an appellate court to track the steps that

the agency took in reaching its decision.'" Carmichael, 150

Hawai#i at 567, 506 P.3d at 231.3 But the court prefaced its

statement by the qualifier, "[w]hile we do not fully set out the

scope of the BLNR's duty to make the requisite findings, we note

that the duty may vary in conjunction with the resources

implicated." Id. And as the majority acknowledges, "even in the

absence of explicit public trust findings in the agency's

[contested case] decision, the decision may nonetheless be upheld

if the public record reflects an application of the public trust

principles." In re MECO, 150 Hawai#i at 540, 506 P.3d at 204;

see also Sierra Club v. Bd. of Land & Nat. Res., 154 Hawai#i 264,

3
The quote from Kauai Springs, 133 Hawai#i at 173, 324 P.3d at 983,
cited Kilauea Neighborhood Ass'n v. Land Use Commission, 7 Haw. App. 227, 751
P.2d 1031 (1988), which also involved a contested case hearing.

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282 n.19, 550 P.3d 230, 248 n.19 (App. 2024) ("When BLNR met on

November 13, 2020, there was no statute, rule, or judicial

precedent requiring that BLNR make written findings to support

decisions made during public meetings. We note that for

decisions made during a public meeting, rather than after a

contested case hearing, BLNR could refer to its staff submittals

or other evidence in the meeting record to support its decision.

The meeting record and minutes should be sufficient for an

appellate court to track the agency's steps."), cert. granted,

No. SCWC-XX-XXXXXXX, 2024 WL 3378462 (Haw. July 11, 2024).

Here, BLNR did not simply give Resorttrust carte

blanche to use Lot 41 for its own purposes, to the exclusion of

the public. BLNR imposed conditions on Resorttrust's permit.

Resorttrust had to obtain required City permits and pay real

property tax assessed on Lot 41. Resorttrust could not

indiscriminately fill Lot 41 with beach chairs, umbrellas, or

other specified items; they could be placed on Lot 41 only if

"the user is physically present or such items have been placed on

[Lot 41] at the request of the user." Resorttrust had to create

and maintain two twenty-foot wide pathways mauka-to-makai4 for

public access. It had to maintain the public beach makai of

Lot 41 at its own cost. Weddings, surf lessons, and kayaking or

boating activities — which would monopolize an inordinate amount

of space — were not allowed. Resorttrust had to let the public

use Lot 41 "to the extent the area is not occupied for a use

4
Mauka means toward the mountains. Makai means toward the ocean.

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allowed under the Permit." In my view, BLNR's imposition of

these conditions shows it considered, and complied with, its duty

to protect the public's use of the trust resource while balancing

the need to use the urban-zoned land for income generation.

(4) The issue before the circuit court was whether

BLNR followed proper procedures and considered the appropriate

factors in making its decision on Resorttrust's application.

That "is a question of law, and will be reviewed de novo." Kia'i

Wai v. Dep't of Water, 151 Hawai#i 442, 454, 517 P.3d 725, 737

(2022). "As in other cases, agency decisions affecting public

trust resources carry a presumption of validity." Id. at 455,

517 P.3d at 738 (quoting Kaua#i Springs, 133 Hawai#i at 164, 324

P.3d at 974). When deciding whether an executive-branch agency

followed proper procedures and considered the appropriate factors

in its decision-making, a court cannot substitute its judgment

about the application of public policy for that of the agency.

"[L]ike the federal government, ours is one in which the

sovereign power is divided and allocated among three co-equal

branches." Tax Found. of Haw. v. State, 144 Hawai#i 175, 190,

439 P.3d 127, 142 (2019) (quoting Trs. of the Off. of Hawaiian

Affs. v. Yamasaki, 69 Haw. 154, 170-71, 737 P.2d 446, 455-56

(1987)). "A court's domain is the law, and judges should

recognize the limits of their expertise." Rosehill v. State, 155

Hawai#i 41, 59, 556 P.3d 387, 405 (2024). A court is not

"authorized to substitute its judgment about the application of

public policy to the facts for that of the agency, which is

constitutionally delegated that power." Sierra Club, 154 Hawai#i
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at 284, 550 P.3d at 250. Nor should a court reweigh the evidence

considered by an expert agency dealing with a specialized field.

Sierra Club v. D.R. Horton-Schuler Homes, LLC, 136 Hawai#i 505,

522, 364 P.3d 213, 230 (2015).

Here, the legal issue of whether BLNR followed proper

procedures and considered the appropriate factors in its

decision-making implicates the facts surrounding the decision-

making. In my view, the uncontroverted material facts in the

record show that BLNR followed proper procedure for decision-

making in a public meeting; began with a presumption favoring

public use, access, and enjoyment for all DLNR-managed land;

considered alternatives, both for the generation of income and

for preserving the public's ability to use Lot 41; and applied

public trust principles to its decision-making on Resorttrust's

permit application. Absent a constitutional or statutory

violation, BLNR's decision carries a presumption of validity and

it is not a court's function to judge whether the decision itself

was right or wrong. I would therefore affirm the order granting

BLNR's motion for summary judgment, but for reasons other than

those stated by the circuit court.

/s/ Keith K. Hiraoka
Associate Judge

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